Right to a Healthy Environment

(found in ''Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts'' by Eyal Benvenisti, American Journal of International Law, April 2008, Volume 102, Number 2, pp. 261-262)

The Supreme Court of the Philippines recognized the necessity to preserve the environment for future generations. Bangladeshi and Indian courts, as well as scholarly articles, have cited this case.

(found in ''Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts'' by Eyal Benvenisti, American Journal of International Law, April 2008, Volume 102, Number 2, p 251)

Pakistan: Zia v. WAPDA, P L D 1994 Sup. Ct. 693

(though international documents like the Rio Declaration are not binding, the Court observed, ''the fact remains that they have a persuasive value and command respect. The Rio Declaration is the product of hectic discussion among the leaders of the nations of the world and it was after negotiations between the developed and the developing countries that an almost consensus declaration had been sorted out. Environment is an international problem having no frontiers creating transboundary effects. In this field every nation has to cooperate and contribute and for this reason the Rio Declaration would serve as a great binding force and to create discipline among the nations while dealing with environmental problems. Coming back to the present subject, it would not be out of place to mention that Principle No. 15 envisages rule of precaution and prudence.'')

(found in ''Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts'' by Eyal Benvenisti, American Journal of International Law, April 2008, Volume 102, Number 2, pp. 261-262)

(found in ''Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts'' by Eyal Benvenisti, American Journal of International Law, April 2008, Volume 102, Number 2, pp. 261-262)

(found in ''Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts'' by Eyal Benvenisti, American Journal of International Law, April 2008, Volume 102, Number 2, p 261)

Several chemical industrial plants established in a major industrial complex were producing substances such as oleum (concentrated sulphuric acid), single super phosphate (SSP), and 'H' acid which gave rise to highly toxic effluents. The court held that it had the power to intervene to protect the constitutionally guaranteed right to life by ordering the closure of the plants and by directing the government to determine and recover the cost of remedial measures from the owners of the plants. The court also recommended the strengthening of environmental protection machinery. In effecting the polluter pays principle, the Court looked to the European Community’s methods regarding polluting entities, in particular the European Community Treaty.

(p270, The Judicial Application of Human Rights Law, by Jayawickrama, Nihal)

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(the Court in this case referred to the 1992 Rio Declaration on Environment and Development and other nonbinding agreements as having been transformed into ''Custoary International Law though [their] salient feature[s] have yet to be finalised by the International law Jurists.''

The Supreme Court of India declined to get involved in a petition against damming the Narmada River. In so doing, the Court noted that a lengthy decision-making process had been behind the damming, and that the Court should not try to second-guess something which had been given such great consideration already. Thus, the Court essentially gave the go-ahead for the displacement of indigenous and tribal populations which were in the path of the damming. In its decision, the Court took into consideration the Indigenous and Tribal Peoples Convention of 1957, the ILO Convention No. 107, and principles of international environmental law.

The defendant had made moves to install industry near a lake. The Indian Supreme Court ruled against the defendant. It referred to various courts around the world, and to a decision of the Inter-American Commission on Human Rights, when it said that ''the concept of a healthy environment as a part of the fundamental right to life, developed by our Supreme Court, is finding acceptance in various countries side by side with the right to development.''

(found in ''Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts'' by Eyal Benvenisti, American Journal of International Law, April 2008, Volume 102, Number 2, p 260)

The Indian Supreme Court allowed the laying of pipes as it found that the plan to do so was thought out and would not unduly damage the enrivonment. The Court referred to the Declaration of the 1972 Stockholm Conference on the Human Environment as the ''Magna-Carta of our environment''. The laying of such pipes would be in line with the Declaration, and thus the Court allowed it. In other cases, the Court imported into domestic law the principles or concepts of sustainable development, the ''polluter pays'' principle, and the precautionary principle.

(found in ''Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts'' by Eyal Benvenisti, American Journal of International Law, April 2008, Volume 102, Number 2, pp. 261-262)

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